BILL ANALYSIS Ó AB 1848 Page 1 Date of Hearing: April 27, 2016 ASSEMBLY COMMITTEE ON APPROPRIATIONS Lorena Gonzalez, Chair AB 1848 (Chiu) - As Amended March 15, 2016 ----------------------------------------------------------------- |Policy |Public Safety |Vote:|7 - 0 | |Committee: | | | | | | | | | | | | | | |-------------+-------------------------------+-----+-------------| | | | | | | | | | | | | | | | ----------------------------------------------------------------- Urgency: No State Mandated Local Program: YesReimbursable: Yes SUMMARY: This bill requires local law enforcement agencies to periodically update the Sexual Assault Forensic Evidence Tracking database (SAFE-T) on the disposition of all sexual assault evidence kits (kits) in their custody by providing specific data. Also, the Department of Justice (DOJ) is required to provide quarterly reports to the Legislature summarizing the data received. AB 1848 Page 2 FISCAL EFFECT: 1)Unknown minor reimbursable state mandated costs (GF) for local agencies to provide the required information, in a yet unspecified schedule, to DOJ. However, AB 1848 does require DOJ to submit quarterly reports to the Legislature; therefore staff assumes the information must be submitted at least quarterly. The database is web-based and free for local law enforcement agencies, so the only cost to local agencies will be workload to enter and data and any status updates. Also, DOJ manages all DNA evidence testing for 46 of the 58 counties; the reimbursable cost from the other 12 should be minor, if any. However, reporting the reason why a rape kit was not tested will be more resource intensive than providing statistical data; but that should not be a common occurrence. 2)Costs to DOJ are minor and absorbable. COMMENTS: 1)Background. Current law requires an adult arrested for or charged with a felony and a juvenile adjudicated for a felony to submit DNA samples. It also specifies that law enforcement should do one of the following for any sexual assault forensic evidence received by the law enforcement agency on or after January 1, 2015: a) Submit sexual assault forensic evidence to the crime lab within 20 days after it is booked into evidence; or b) Ensure that a rapid turnaround DNA program is in place to submit forensic evidence collected from the victim of a sexual assault directly from the medical facility where the AB 1848 Page 3 victim is examined to the crime lab within five days after the evidence is obtained from the victim. Current law encourages DNA analysis of rape kits within the statute of limitations, which states that a criminal complaint must be filed within one year after the identification of the suspect by DNA evidence, and that DNA evidence must be analyzed within two years of the offense for which it was collected. Current law also encourages crime labs to do one of the following: a) Process rape kits, create DNA profiles when possible, and upload qualifying DNA profiles into CODIS within 120 days of receipt of the rape kit; or b) Transmit the rape kit to another crime lab within 30 days to create a DNA profile, and then upload the profile into CODIS within 30 days of being notified about the presence of DNA Current law also requires law enforcement agencies to inform victims in writing if they intend to destroy a rape kit 60 days prior to the destruction of the rape kit, when the case is unsolved and the statute of limitations has not run. SAFE-T was created by DOJ in 2015, based on voluntary data input from law enforcement agencies, to help track how many rape kits were not being tested. However, a recent report by the California State Auditor found that law enforcement agencies rarely document reasons for not analyzing sexual assault evidence kits. The audit found 45 cases in which the kits were not submitted for analysis. Upon a more in-depth review of the individual cases, the report found that analysis of the kits would not have been likely to further the investigation of those cases. Even though the individual reasons for not testing the kits was found to be reasonable, the report still stressed the need for more information about why agencies decide to send some kits but not others. AB 1848 Page 4 2)Purpose. According to the author, there is no comprehensive data on how many rape kits are collected and the reasons why kits are not tested. The author argues that we need to know how many kits are collected each year, and if they're not analyzed, we need to know why. AB 1848 requires local law enforcement agencies to periodically update SAFE-T on the disposition of all sexual assault evidence kits in their custody by providing the following: a) number of kits collected, b) number of kits for which biological evidence samples were submitted to a DNA lab for analysis; c) number of kits from which probative evidence was generated; and d) reason for not submitting evidence from a given kit to a DNA lab. Also, if after 120 days the sample has not been tested, a public lab is required to provide a reason for the status, and if the DNA testing is performed by a private lab, the responsible law enforcement agency is required to provide updates on the status every 120 days. 1)Support: According to the sponsor, Attorney General Kamala Harris, "Recent years have seen a loudening outcry over a so-called 'rape kit backlog' in California and nationwide - allegations that many sexual assault evidence kits, possibly thousands, remain untested. There is no doubt that when evidence that could lead to the identification of an unknown AB 1848 Page 5 assailant goes unanalyzed without good cause, some miscarriage of justice has occurred. At the same time, there are myriad reasons why a local agency sample may not be tested-many of which may well be legitimate-including resource limitations and decisions made as part of the prosecutorial process. In order to effectively address any perceived epidemic of unanalyzed kits, we must better understand the reasons why kits are not tested. 2)Opposition. According to the California State Sheriffs' Association (CSSA), "We share your intent that sexual assaults are investigated and perpetrators not go unpunished. In 2014, CSSA worked with Assembly Member Nancy Skinner to amend her AB 1517 into a final product that will help achieve those goals without being overly burdensome. However, by requiring law enforcement agencies to provide statistics to DOJ, AB 1848 will create another unfunded mandate and would place significant cost burdens on these agencies in terms of resources and personnel. 3)Related Legislation: a) AB 909 (Quirk), would have required a law enforcement agency responsible for taking or processing rape kit evidence to annually report, by July 1 of each year, to the Department of Justice information pertaining to the processing of rape kits, including the number of rape kits the law enforcement agency collects, the number of those rape kits that are tested, and the number of those rape kits that are not tested. For those rape kits that are not tested, the bill would require the law enforcement agency to also report the reason the rape kit was not tested. This bill was held on the Senate Appropriations Suspense file. b) AB 2499 (Maienschein), updates the SAFE-T database to allow victims of sexual assault to have secure access to AB 1848 Page 6 the location and information regarding their sexual assault evidence kits. This bill is also on today's committee calendar. 6)Prior Legislation: a) AB 1517 (Skinner), Chapter 874, Statutes of 2014, encourages law enforcement agencies to submit sexual assault forensic evidence received by the agency to a crime lab within 20 days after it is booked into evidence, and ensure that a rapid turnaround DNA program is in place to submit forensic evidence collected from the victim of a sexual assault to a crime lab within 5 days after the evidence is obtained from the victim. b) AB 558 (Portantino), of the 2009-2010 session, would have required local law enforcement agencies responsible for taking or collecting rape kit evidence to annually report to the Department of Justice statistical information pertaining to the testing and submission for DNA analysis of rape kits. This bill was vetoed by Governor Schwarzenegger, who noted: . "while this measure is well-intended, it continues to ignore the precarious fiscal conditions of California's crime laboratories? Unfortunately, AB 558 will not provide any additional funding or staffing for crime laboratories and will instead divert resources away from testing to sending reports to the Department of Justice. In this time of fiscal crisis, I cannot condone this shift in priorities." Analysis Prepared by:Pedro Reyes / APPR. / (916) 319-2081 AB 1848 Page 7